Does Obamacare Violate the Constitution?

NEW YORK (MainStreet)  Does the Affordable Care Act (ACA) violate the "origination" clause? What about the First Amendment?

As law professor Josh Blackman observes in his book, Unprecedented, the Constitutional Challenge to Obamacare (PublicAffairs, 2013), President Barack Obama, accomplished what Teddy Roosevelt, FDR, LBJ, Richard Nixon and Bill Clinton failed to accomplish - a law that reformed how Americans are insured to pay for medical services.

Blackman recently addressed the Philadelphia chapter of the Federalist Society about the constitutionality of the ACA, commonly referred to as Obamacare. He observed that conservatives and liberals have changed positions about healthcare reform for more than two decades now. He stressed that the individual mandate, so abhorrent to conservatives now, was first advanced by some Republicans as an alternative to Hillarycare in the early 1990s. Romneycare was another Republican initiative that contained a mandate.

"There are many unprecedented things about the ACA," Blackman said. "There are a lot aspects to it that are stunning. It is novel in that it was the first time Congress forced Americans to buy a product. It was also passed along along a strict party line vote - no Republicans voted for the bill."

Blackman says that the Supreme Court addressed the mandate issue in 2012. The famous Roberts vote was such a shock to most people that two major cable news networks reported it incorrectly. They were so certain that the conservative majority in the Court would rule against Obama.

"In order to save the law from being struck down, the Chief Justice changed it from a requirement to purchase insurance to a tax," Black said. "The Chief Justice called it a tax in order to save it constitutionally. He used a 'saving construction' which means you take a statute and make the words mean something they do not. Roberts obviously did not want to strike down the law. So he pretended it was a tax."

The problem was the money paid if one did not purchase insurance. It was called a penalty not a tax by the politicians who voted for it. The word tax was perceived to have negative political ramifications. Obama did not call it a tax. Neither did any of the Democrats in Congress who voted for it call it a tax. They all referred to it as a penalty.

"If Congress passed it as a tax there would have been no problem," Blackman continued. "But politically calling it a tax was verboten. So they called it a penalty."

Even though this is settled law, the tax versus penalty issue is the major focus of another case. Since the Court held the mandate was a tax and not a law forcing Americans to engage in commerce this raises another question - does the tax/mandate violate the origination clause which requires taxes to originate in the House of Representatives?

Obamacare began in Senate. It was a shell bill in the House. So will the Supreme Court rule against it? No Appeals Court has ruled on this. Indeed, no court has ever ruled on the origination clause, according to Blackman. So this too will be an unprecedented if there is such a ruling.

If the courts find a violation of the origination clause, the mandate will be removed from the law. If so, the law falls apart.

"Even the Obamacare administration has said this," emphasized Blackman.

Blackman also mentioned the case of Halbig v. Sebelius. This questions the validity of the subsidies for health insurance in those states where there are only federal exchanges. The ACA says that only the subsidies are in the state run exchanges. It does not say anything about federal exchanges which are operated in the states not offering exchanges.

There was no option initially for states to opt out of insurance exchanges. But the Supreme Court said states could. The federal government then created exchanges in those states. The government provides subsidies to insurance companies to make the insurance cheaper for those who qualify. If the Court rules that the federal exchanges cannot offer subsidies then the ACA will be hampered.

"So either Congress would have to amend the law or the states would have to pay higher premiums," Blackman said. "The ramifications are enormous. It is still pending a decision in the District Court for the District of Columbia. We could get an opinion any day now. Then it will immediately be appealed to the D.C. Circuit."

Blackman was recently named to Forbes magazine's list of 30 Under 30: The Top Young Lawyers, Policymakers And Power Players. This makes him one of the Millennial Generation - a demographic critical to Obamacare. He makes an interesting observation about his peers and the program.

"Regarding the Millennial generation and the ACA, there is a strong incentive for them not to sign up for insurance because it can be expensive, and if they need insurance in the future, they can purchase it without being denied coverage for pre-existing conditions," Blackman said.